Whiskey fungus lawsuit back on track

LOUISVILLE, Ky. (WDRB) -- A victory for those going after Kentucky bourbon makers means a lawsuit against two distilleries over whiskey fungus is now back on track.

A black fungus blankets homes and businesses near bourbon distilleries. It's called “whiskey fungus” or Baudoinia compniacensis.

“It's a nuisance, its time consuming, and it's quite expensive,” said Bruce Merrick.

The fungus is a result of evaporated ethanol and it's causing serious consequences for Dant Clayton, a national manufacturer of stadium bleachers.

“The damage that occurs to product that we do have to have outside is substantial,” said Merrick.

As Chairman of Dant Clayton, Merrick along with others affected by the fungus have won their appeal against the Brown Forman Corporation and Heaven Hill Distilleries. Friday morning the Kentucky Court of Appeals unanimously agreed on a reversal so their lawsuit could be sent to trial.

“They are not free to release ethanol that creates fungus without being subjected to the Kentucky state court process,” said Attorney William McMurry.

The lawsuit was originally filed in 2012, but was dismissed, which lead to the appeal. Brown Forman and Heaven Hill distilleries released a joint statement saying:

"We are considering our options, including asking the Kentucky Supreme Court to review the Court of Appeals reversal of the Jefferson Circuit Court decision."

McMurry says whiskey makers argue they should not be held responsible because they were free to release ethanol under the federal government's Clean Air Act, but this federal law conflicts with state law.

“You have state laws that say you cannot create an unreasonable interference with the use and enjoyment of your neighbor's property, even if you're engaging in lawful activity,” said McMurry.

McMurry and the plaintiffs want the distilleries to pay for property damages from the fungus or put controls on buildings that would capture and destroy the ethanol. However he says the distilleries argue that the controls would destroy the flavor.

McMurry plans to be back in trial court against Brown Foreman and Heaven Hill by next year.